SPONSOR: |
Sen. Henry & Rep. Walker |
|
Sens.
Blevins, Ennis, Hall-Long, Marshall, Cloutier, Connor & Sorenson, Reps.
Bennett, Bolden, Keeley, Mitchell, Mulrooney, Viola, Hudson & Lavelle |
DELAWARE STATE SENATE 146th GENERAL ASSEMBLY |
SENATE BILL NO. 194 |
AN ACT TO AMEND TITLE 24 OF THE DELAWARE CODE RELATING TO POLYSOMNOGRAPHERS. |
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Three-fifths of all members elected to each house thereof concurring therein):
Section 1. Amend Title 24 of the Delaware Code by making insertions as shown by underlining as follows:
Subchapter XII. Professional Polysomnographers.
§ 1799T. Statement of purpose.
The intent of the General Assembly in enacting this subchapter is to
establish minimum standards of education, experience and examination for
professional polysomnographers so that the public can readily identify those
who meet these minimum standards. In enacting this subchapter the General
Assembly intends to provide a licensure process for professional
polysomnographers, a scope of practice for polysomnographer services, and to
establish "licensed polysomnographer" as the state-recognized legal
title for professional polysomnographers. It is also the intent of the General
Assembly in enacting this subchapter to assure consumers the right to choose
from whom they receive information and advice. Recognition of these goals will
protect the health of the public by broadening access to appropriate
polysomnography services.
§ 1799U. Definitions.
As used in this subchapter:
(1) "AASM" shall mean the American Academy of Sleep Medicine or
an organization that is recognized as equivalent.
(2) "Board" shall mean the Board of Medical Licensure and
Discipline.
(3) "BRPT" shall mean the Board of Registered Polysomnographic
Technologists or its successor organization.
(4) “Council” means the Polysomnography Advisory Council;
(5) “Direct supervision” means that the Licensed Polysomnographer
providing supervision must be present in the area where the polysomnographic
procedure is being performed and immediately available to furnish assistance
and direction throughout the performance of the procedure;
(6) “General supervision” means that the Licensed Polysomnographer works
under the supervision of a person licensed to practice medicine, whether by
direct observation and monitoring, by protocols approved by a person licensed
to practice medicine, or by orders written or verbally given by a person
licensed to practice medicine. A Licensed Polysomnographer may evaluate
patients and make decisions within parameters defined by a person certified to
practice medicine and by the Board of Medical Practice. The Licensed
Polysomnographer works under a physician’s overall direction and control, but
the physician’s presence is not required during the performance of the
procedure.
(7) "License" shall mean any document which indicates that a
person is currently licensed by the Board of Medical Licensure and Discipline
to practice polysomnography.
(8) "LPSGT" shall be the abbreviation for the title
"licensed polysomnographer".
(9) “NBRC SDS exam” means the National Board for Respiratory Care Sleep
Disorders and Therapeutic Intervention Respiratory Care Specialist exam.
(10) “Polysomnographer" means an allied health professional,
practicing polysomnography under the direction of a person licensed to practice
medicine, who is responsible for direct and indirect services in the treatment,
management, diagnostic testing, control, and care of patients with deficiencies
and abnormalities associated with the human sleep wake cycle.
(11) “Polysomnographic Student” means a person who is enrolled in an
accredited educational program described in Section 1799V and who may provide
sleep-related services under the direct supervision of a
Licensed Polysomnographer as a part of the person’s educational program
and is therefore, exempt from the licensure requirement;
(12) “Polysomnographic Trainee” means a person who has completed an accredited
educational program described in Section 1799V and who may provide sleep
related services under the direct supervision of a licensed Polysomnographer as
part of the person’s clinical program and is therefore exempt from the
licensure requirement;
(13) “Practice of polysomnography” means the performance of any of the
following tasks, under the general supervision of a licensed physician:
a. Monitoring and recording physiologic data during the evaluation of
sleep-related disorders, including sleep-related respiratory disturbances, by
applying the following techniques, equipment, and procedures:
1. Titration using approved airway pressure devices
and/or other technologies on spontaneously breathing patients using a mask or
oral appliance, provided the mask or oral appliance does not extend into the
trachea or attach to an artificial airway;
2. Supplemental low flow oxygen therapy (less than or equal
to six (6) liters per minute) during a polysomnogram utilizing a nasal cannula
or approved airway pressure devices and technologies on spontaneously breathing
patients, provided the devices or technologies do not extend into the trachea
or attach to an artificial airway;
3. Capnography during a polysomnogram;
4. Cardiopulmonary resuscitation;
5. Pulse oximetry;
6. Gastroesophageal pH monitoring;
7. Esophageal pressure monitoring;
8. Sleep staging (including surface
electroencephalography, surface electrooculography, and surface submental
electromyography);
9. Surface electromyography;
10. Electrocardiography;
11. Respiratory effort monitoring, including thoracic
and abdominal movement;
12. Plethysmography blood flow monitoring;
13. Snore monitoring;
14. Audio and video monitoring;
15. Body movement and body position monitoring;
16. Nocturnal penile tumescence monitoring;
17. Nasal and oral airflow monitoring;
18. Body temperature monitoring;
19. Monitoring the effects that a mask or oral
appliance used to treat sleep disorders has on sleep patterns; provided,
however, the mask or oral appliance shall not extend into the trachea or attach
to an artificial airway;
20. Actigraphy;
b. Observing and monitoring physical signs and symptoms, general
behavior, and general physical response to polysomnographic evaluation and
recommending whether initiation, modification, or discontinuation of a
treatment regimen is warranted;
c. Analyzing and scoring data collected during the monitoring described
in subdivisions 1799U (a)1 and 2 for the purpose of assisting a licensed
physician in the diagnosis and treatment of sleep and wake disorders;
d. Implementation of a written or verbal order from a licensed physician
which requires the practice of polysomnography;
e. Education of a patient regarding sleep disorders and the treatment
regimen which assists that patient in improving the patient’s sleep.
§1799V. Education
The following qualify as approved educational programs:
(a) A polysomnographic educational program that is
accredited by the Commission on Accreditation of Allied Health Education
Programs;
(b) A respiratory care educational program that is
accredited by the Commission on Accreditation of Allied Health Education
Programs and completion of the curriculum for a polysomnography certificate
established and accredited by the Committee on Accreditation for
Respiratory Care of the Commission on Accreditation of the Allied Health
Education Programs;
(c) An electroneurodiagnostic technologist educational
program with a polysomnographic technology track that is accredited by the
Commission on Accreditation of Allied Health Education Programs; or
(d) An Accredited Sleep Technologist Educational
Program (A-STEP) that is accredited by the American Academy of Sleep Medicine.
§ 1799W. Polysomnography Advisory Council.
(a) The Polysomnographer Advisory Council (Council) consists of 5 voting
members. The 5 voting members shall consist of 1 physician member of the Board
of Medical Licensure and Discipline, 4 Council members shall be RPSGT
credentialed and have been primarily employed in the practice of
polysomnography in this State for at least 3 years immediately prior to
appointment. The Council may elect officers as necessary.
(b) Each Council member is appointed by the Board of Medical Licensure
and Discipline for a term of 3 years, and may succeed himself or herself for 1
additional 3-year term; provided, however, that if a member is initially
appointed to fill a vacancy, the member may succeed himself or herself for only
1 additional 3-year term. A person appointed to fill a vacancy on the Council
is entitled to hold office for the remainder of the unexpired term of the
former member. Each term of office expires on the date specified in the
appointment; however, a Council member whose term of office has expired remains
eligible to participate in Council proceedings until replaced by the Board. A
person who has never served on the Council may be appointed to the Council for
2 consecutive terms, but the person is thereafter ineligible for appointment to
the Council except as hereinafter provided. A person who has been twice
appointed to the Council or who has served on the Council for 6 years within
any 9-year period may not again be appointed to the Council until an interim period
of at least 1 year has expired since the person last served. The members of the
Council are to be compensated at an appropriate and reasonable level as
determined by the Division of Professional Regulation and may be reimbursed for
meeting-related travel expenses at the State's current approved rate. A member
serving on the Council may not be an elected officer or a member of the board
of directors of any professional association of polysomnographers.
(c) The Council shall promulgate rules and regulations governing the
practice of polysomnography, after public hearing and subject to the approval
of the Board of Medical Licensure and Discipline. The Board must approve or
reject proposed rules or regulations submitted to it by the Council within 60
days. If the Board fails to approve or reject the proposed rules or regulations
within 60 days, the proposed rules or regulations are deemed to be approved by
the Board.
(d) The Council shall meet quarterly, and at such other times as license
applications are pending and evaluate the credentials of all persons applying
for a license as a licensed polysomnographer in this State, in order to
determine whether such persons meet the qualifications for licensing set forth
in this chapter. The Council shall present to the Board the names of
individuals qualified to be licensed and shall recommend disciplinary action
against licensees as necessary, and shall suggest changes in operations or
regulations. The Board shall approve or reject these recommendations within a reasonable
time period.
(e) License suspension, revocation, or nonrenewal.
(1) The Council, after appropriate notice and hearing, may recommend to
the Board that the Board revoke, suspend, or refuse to issue a license, or
place the licensee on probation, or otherwise discipline a licensee found
guilty of unprofessional conduct. Unprofessional conduct includes, but is not
limited to, fraud, deceit, incompetence, negligence, dishonesty, or other
behavior in the licensee's professional activity which is likely to endanger
the public health, safety, or welfare. The Council may recommend and the Board
may take necessary action against a licensed polysomnographer, who is unable to
render services with reasonable skill or safety to patients because of mental
illness or mental incompetence, physical illness, or the excessive use of drugs
including alcohol. Disciplinary action or other action taken against
a licensed polysomnographer must be accordance with the procedures for
disciplinary and other actions against physicians, including appeals as set
forth in subchapter IV of this chapter except that a hearing panel for a
complaint against a licensed polysomnographer consists of 3 members; 1 of the 3
shall be a physician member of the Board; 2 of the 3 shall be unbiased members
of the Council; and if no conflict exists, 1 of the 2 Council members shall be
the Chair of the Council. The Chair of the hearing panel shall be 1 of the
Council panel members.
(2)a. In the event of a formal or informal complaint concerning the activity
of a licensee that presents a clear and immediate danger to the public health,
the Board may temporarily suspend the person’s license, pending a hearing, upon
the written order of the Secretary of State or the Secretary’s designee, with
the concurrence of the Board chair or the Board chair’s designee. An order
temporarily suspending a license may not be issued unless the person or the
person’s attorney received at least 24 hours written or oral notice before the
temporary suspension so that the person or the person’s attorney may file a
written response to the proposed suspension. The decision as to whether to
issue the temporary order of suspension will be decided on the written
submissions. An order of temporary suspension pending a hearing may remain in
effect for no longer than 60 days from the date of the issuance of the order
unless the temporary suspended person requests a continuance of the hearing
date. If the temporary suspended person requests a continuance, the order of
temporary suspension remains in effect until the hearing is convened and a
decision is rendered by the Board. A person whose license has been temporarily
suspended pursuant to this section may request an expedited hearing. The Board
shall schedule the hearing on an expedited basis, provided that the Board
receives the request within 5 calendar days from the date on which the person
received notification of the decision to temporarily suspend the person’s
license.
b. As soon as possible after the issuance of an order temporarily
suspending a polysomnographer’s license to practice pending a hearing, the
Council Chair shall appoint a 3-member hearing panel consisting of 3 members; 1
of the 3 shall be a physician member of the Board; 2 of the 3 shall be unbiased
members of the Council; and if no conflict exists, 1 of the 2 Council members
shall be the Chair of the Council. The Chair of the hearing panel shall be 1 of
the Council panel
members; or the complaint may be scheduled before a hearing officer
pursuant to 29 Del. C. Section 8735 (t)(1)(d). The hearing shall be convened
within 60 days of the date of issuance of the order of temporary suspension to
consider the evidence regarding the matters alleged in the complaint. If a
polysomnographer requests in a timely manner an expedited hearing, the hearing
panel shall convene within 15 days of the receipt of the request by the
Council. A decision shall be rendered
within 30 days of the hearing.
c. In addition to making findings of fact, the hearing panel or hearing
officer shall also determine whether the facts found by it constitute a clear
and immediate danger to public health. If the hearing panel or hearing officer
determines that the facts found constitute a clear and immediate danger to
public health, the order of temporary suspension must remain in effect until
the Board deliberates and reaches conclusions of law based upon the findings of
fact. An order of temporary suspension may not remain in effect for longer than
60 days from the date of the decision rendered unless the suspended
polysomnographer requests an extension of the order pending a final decision of
the Board. Upon the final decision of the Board, an order of temporary
suspension is vacated as a matter of law and is replaced by the disciplinary
action, if any, ordered by the Board.
§ 1799X. Licensure.
(a) On and after July 1, 2014, any person who is engaged in the practice of
polysomnography must be licensed as provided in this chapter. It shall be
unlawful for any person to engage in the practice of polysomnography on or
after July 1, 2014 unless such person is practicing polysomnography under the
provisions of this chapter.
(b) Polysomnographic License.
(1) A Licensed Polysomnographer may provide sleep-related services under
the general supervision of a licensed physician;
(2) A person seeking licensure as a Licensed Polysomnographer must
present proof that the person meets the following requirements:
a. Must be at least eighteen (18) years of age, and must pay the fees
established by the Division of Professional Regulation;
b. The Licensed Polysomnographer applicant must have successfully
completed one of the educational requirements in Section 1799V and passed a
nationally recognized exam approved by the Council unless otherwise exempt
pursuant to Paragraph 3 of this Subsection;
c. The Licensed Polysomnographer applicant must meet any additional
educational or clinical requirements established by the Board.
(3) Any individual who is engaged in the practice of
polysomnography as of July 1, 2011, shall be eligible for licensure under this
chapter without meeting the educational requirement in Section 1799V, if the individual has:
a. passed the national certifying examination given by
the Board of Registered Polysomnographic Technologists;
b. been credentialed by the Board of Registered
Polysomnographic Technologists; and
c. met any additional educational or clinical
requirements established by the committee.
(4) Before practicing polysomnography, an individual must obtain a
Polysomnographic License from the Board.
(5) To be eligible for renewal of a license to engage in the practice of
polysomnography, a Licensed Polysomnographer must continue to be credentialed
by BRPT, or other organization approved by the Council.
(6) Licensure
a. No person shall represent oneself or engage in the practice of
polysomnography as a licensed polysomnographer in this State or use the title
"polysomnographer", "licensed polysomnographer”,
"LPSGT", or any combination of above terms and/or abbreviations
unless such a person is licensed under this subchapter.
b. This subchapter does not prohibit or restrict:
1. Any person licensed in this State under any chapter of this title who
are physicians or other healthcare professionals from engaging in the practice
for which that person is licensed;
2. The practice of polysomnography by a person who is employed by the
United States or state government or any of its bureaus, divisions, or agencies
while in the discharge of the employee's official duties;
3. The supervised practice of polysomnography of a person pursuing a
course of study leading to a certificate or degree in polysomnography or an
equivalent major, as authorized by the Board, from an accredited school or
program approved by the Council, if the activities and services constitute a
part of a supervised course of study and if the person is designated by a title
that clearly indicates the person's status as a student. This period is not to
exceed 2 years unless written approval is provided by the Board. The individual
will be supervised by an individual licensed under this subchapter or a
physician; or
4. The provision of Diagnostic electroencephalograms conducted in
accordance with the guidelines of the American Clinical Neurophysiology
Society.
(c) Waiver of requirements. The Polysomnography Advisory Council, by the
affirmative vote of 5 of its members and with the approval of the Board within
30 days of the vote, may waive any of the requirements of subsection §1799W
(d).
(d) License denial. If it appears to
the Board that an applicant has been intentionally fraudulent or that an
applicant has intentionally submitted, or intentionally caused to be submitted,
false information as part of the application process, the Board may not issue a
license to the applicant and must report the incident of fraud or submitting
false information to the Office of the Attorney General for further action.
(e) An applicant who is applying for licensure under this subchapter
shall:
(1) Submit an application prescribed by the Council.
(2) Submit a certified criminal background check pursuant to § 1720(b)(6)
of this title.
(3) The applicant may not have an impairment related to the current use
of drugs or alcohol which substantially impairs the practice of polysomnography
with reasonable skill and safety.
(f) The Board may refuse or reject an applicant, if after hearing, the
Board finds that:
(1) The applicant has engaged in activities that are grounds for
discipline under § 1799BB of this title.
(2) The applicant has been convicted of a crime substantially related to
the practice of polysomnography as determined by the Board of Medical Licensure
and Discipline in its rules and regulations.
(3) The applicant has been the recipient of any administrative penalties
from any other jurisdiction or jurisdictions regarding the applicant's practice
of polysomnography, including but not limited to fines, formal reprimands,
license suspensions or revocation (except for license revocations for
nonpayment of license renewal fees), probationary limitations, and/or has entered
into any "consent agreements" which contain conditions placed by a
Board on the applicant's professional conduct and practice, including any
voluntary surrender of a license in lieu of discipline.
(g) Waiver of requirements. -- The Council, by the affirmative vote of 3
of its members and with the approval of the Board within a reasonable period of
time from the vote, may waive any of the requirements of subpart (b)(2)b. of
this section if it finds all of the following by clear and convincing evidence:
(1) The applicant's education, training, qualifications and conduct have
been sufficient to overcome the deficiency or deficiencies in meeting the
requirements of this section;
(2) The applicant is capable of practicing as a polysomnographer in a
competent and professional manner;
(3) The granting of the waiver will not endanger the public health,
safety, or welfare; and
(4) For waiver of a felony conviction, more than 5 years have elapsed
since the date of the conviction. At the time of the application the applicant
may not be incarcerated, on work release, on probation, on parole or serving
any part of a suspended sentence and must be in substantial compliance with all
court orders pertaining to fines, restitution and community service;
(5) For waiver of a misdemeanor conviction or violation, at the time of
the application the applicant may not be incarcerated, on work release, on
probation, on parole or serving any part of a suspended sentence and must be in
substantial compliance with all court orders pertaining to fines, restitution
and community service.
(h) Where the application of a person has been refused or rejected and
such applicant feels that the Board has acted without justification, and
imposed higher or different standards for the person than for other applicants
or licensees, or has in some other manner contributed to or caused the failure
of such application, the applicant may appeal to the Superior Court.
§ 1799Y. Endorsement.
An applicant for licensure by reciprocity must possess a current license
in a state which has licensing requirements substantially similar to or
exceeding the requirements of this subchapter, and there may not be any
outstanding or unresolved complaints against the applicant.
§ 1799Z. Continuing education.
The Council, with the approval of the Board, is authorized to adopt
regulations specifying continuing education requirements which must be met by a
licensee before a licensee will be eligible for renewal of their license.
§ 1799AA. Issuance and renewal of licenses; fees.
(a) The Division of Professional Regulation shall establish reasonable
fees for licensing polysomnographers and for biennial license renewal.
(b) The Board shall issue a license to each applicant who meets the
requirements of this chapter for licensure as a polysomnographer and who pays
the established fees.
(c) Each license shall be renewed biennially, in such manner as is
determined by the Division and upon payment of the appropriate fee and
submission of a renewal form provided by the Division, and proof that the
licensee has met the continuing education requirements established by § 1799Z
of this title.
(d) The Council, in its rules and regulation, shall determine the period
of time within which a licensee may still renew the licensee's license and determine
late fees associated with the license renewal, notwithstanding the fact that
such licensee has failed to renew on or before the renewal date, provided,
however that such period shall not exceed 1 year.
(e) A licensee, upon written request, may be placed in an inactive status
for no more than 5 years. Such person, who desires to reactivate that person's
license, shall complete a Board-approved application form, obtain an updated
certified criminal background check, submit a renewal fee, and proof of
fulfillment of continuing education requirements in accordance with the rules
and regulation of the Council.
§ 1799BB. Grounds for discipline, sanctions, or
penalties.
(a) The following conditions and actions of a polysomnographer may result
in disciplinary action as set forth in subsection (b) of this section if, after
a hearing, the Board finds that an applicant or polysomnographer:
(1) Has employed or knowingly cooperated in fraud or material deception
in order to be licensed: or
(2) Has engaged in illegal, incompetent or negligent conduct in the
provision of polysomnography; or
(3) Has, in the practice of the profession, knowingly engaged in an act
of consumer fraud or deception; or
(4) Has violated the code of ethics as established by the American
Academy of Sleep Medicine, BRPT or and other organization approved by the
Council; or
(5) Has violated a lawful provision of this subchapter or any lawful rule
or regulation established hereunder; or
(6) Has been convicted of a crime substantially related to the practice
of polysomnography as determined by the Board of Medical Licensure and
Discipline in its rules and regulations; or
(7) Has been convicted of a sexual felony offense.
(b) Persons licensed under this subchapter who have been determined to be
in violation of this subchapter shall be subject to the following disciplinary
actions:
(1) Issuance of a letter of reprimand.
(2) Censure.
(3) Placement on probationary status.
(4) Denial of license.
(5) Suspension of license.
(6) Revocation of license.
(7) Impose a monetary penalty not to exceed $500 for each violation.
(c) As a condition of reinstatement of a suspended license or removal
from probationary status, the Board may impose such disciplinary or corrective
measures as are authorized under this subchapter.
§ 1799CC. Unauthorized practice of
polysomnography.
Whoever engages in the practice of polysomnography or attempts to engage
in the practice of polysomnography contrary to the provisions of this
subchapter shall be guilty of a Class G felony and shall be fined not less than
$500 and not more than $1,500, or imprisoned not more than 2 years, or both.
§ 1799DD. Procedure or action not described.
This subchapter governs the practice of polysomnography. If a procedure
or action is not specifically prescribed in the subchapter, but is prescribed
in the subchapters relating to the practice of medicine, and the procedure or
action would be useful or necessary for the regulation of polysomnographic
practitioners, the Board may, in its discretion, proceed in a manner prescribed
for physicians in the practice of medicine.
§ 1799EE. Duty to report conduct that
constitutes grounds for discipline or inability to practice.
(a) Every person to whom a license to practice has been issued under this
Chapter has a duty to report to the Division of Professional Regulation in
writing information that the licensee reasonably believes indicates that any
other practitioner licensed under this chapter or any other healthcare provider
has engaged in or is engaging in conduct that would constitute grounds for
disciplinary action under this chapter or the other healthcare provider’s
licensing statute.
(b) Every person to whom a license to practice has been issued under this
Chapter has a duty to report to the Division of Professional Regulation in
writing information that the licensee reasonably believes indicates that any
other practitioner licensed under this chapter or any other healthcare provider
may be unable to practice with reasonable skill and safety to the public by
reason of mental illness or mental incompetence; physical illness, including
deterioration through the aging process or loss of motor skill; or excessive
abuse of drugs, including alcohol.
(c) Every person to whom a license to practice has been issued under this
Chapter has a duty to report to the Division of Professional Regulation any
information that the reporting person reasonably believes indicates that a
person certified and registered to practice medicine in this State is or may be
guilty of unprofessional conduct or may be unable to practice medicine with
reasonable skill or safety to patients by reason of mental illness or mental
incompetence; physical illness, including deterioration through the aging
process or loss of motor skill; or excessive use or abuse of drugs, including
alcohol.
(d) All reports required under subsections (a), (b) and (c) of this
section must be filed within 30 days of becoming aware of such information. A
person reporting or testifying in any proceeding as a result of making a report
pursuant to this section is immune from claim, suit, liability, damages, or any
other recourse, civil or criminal, so long as the person acted in good faith
and without gross or wanton negligence; good faith being presumed until proven
otherwise, and gross or wanton negligence required to be shown by the
complainant.
SYNOPSIS
The Bill regulates the practice of polysomnography in Delaware. It establishes standards of education, experience and examination for polysomnographic professionals. The Bill further establishes a regulated framework and license process for those individuals engaged in the practice. The Bill reflects the intent of the General Assembly to ensure patient safety, access and quality of care in the field of polysomnography. |
Author: Senator Henry